478 S.W.3d 281
Ark. Ct. App.2015Background
- On January 12, 2013, Kenneth Cole Sizemore’s SUV rolled over; front‑seat passenger Zachary Hagan was ejected and killed.
- Eyewitnesses reported Sizemore’s vehicle weaving across lanes at high speed, crossing five lanes, striking a curb, and rolling; no ice or precipitation was observed.
- Vehicle “black box” data showed increasing speed to about 75 mph, throttle at or near full, and brakes not engaged during the seconds before the rollover.
- Investigators recovered three cans of air duster purchased minutes before the crash; toxicology detected difluoroethane (an inhalant) and other substances in Sizemore’s blood. Experts said difluoroethane can affect users but dissipates quickly.
- Sizemore denied recent drug use and testified the crash occurred after a passenger sprayed air duster in his face and he went onto a curb; he moved for a directed verdict after the State rested and again after trial.
- The jury acquitted Sizemore of manslaughter but convicted him of misdemeanor negligent homicide; he received one year in county jail and a $2,500 fine. On appeal he challenged the denial of his directed‑verdict motion; the Court affirmed the conviction but remanded to correct a scrivener’s error in the sentencing order (it cited the felony statute).
Issues
| Issue | State's Argument | Sizemore's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for negligent homicide (directed verdict) | Evidence of high speed, unsafe driving, no braking, presence of inhalant in blood, and purchase of air duster minutes earlier supports criminal negligence | Evidence did not show drugs affected driving or Sizemore’s awareness of risk; conviction would rest on speculation—at most careless driving | Affirmed: substantial circumstantial evidence supported misdemeanor negligent homicide conviction |
| Clerical error in sentencing order | Sentencing order should track jury conviction | Sentencing order incorrectly cited felony statute | Remanded for correction nunc pro tunc to reflect conviction under the misdemeanor statute |
Key Cases Cited
- Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (recognizing negligent operation of a vehicle that remains in wrong lane and causes death supports negligent homicide)
- Robinson v. State, 98 Ark. App. 237, 254 S.W.3d 750 (standard for reviewing directed‑verdict/sufficiency challenges)
- Riley v. State, 2011 Ark. App. 511, 385 S.W.3d 355 (circuit court may correct clerical errors nunc pro tunc)